Opinion
No. 86-34
Decided March 18, 1987.
Attorneys at law — Misconduct — Permanent disbarment — Conviction for obstruction of justice — R.C. 2921.32 — Failure to carry out contract of employment — Operating motor vehicle while under influence of alcohol.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
This disciplinary action is before the court on a complaint filed by relator, Office of Disciplinary Counsel, against respondent, Edward William Hastie II. On September 19, 1986, a private hearing was conducted before a panel of the Board of Commissioners on Grievances and Discipline of the Bar. Respondent was present at the hearing and proceeded pro se. Prior to the formal hearing in this action, respondent had moved the board for the appointment of counsel. The board denied respondent's motion on the authority of Ohio State Bar Assn. v. Illman (1976), 45 Ohio St.2d 159, 74 O.O. 2d 284, 342 N.E.2d 688. Respondent later renewed this motion orally at his disciplinary hearing. On October 21, 1986, the panel of the board of commissioners submitted the following findings of fact, conclusions of law and recommendation, as supported by the record.
IPrior to October 13, 1984, Robert F. Boyd, a friend of respondent, moved into respondent's residence with him. On October 13, 1984, Boyd borrowed respondent's automobile and used it in connection with Boyd's attempts to defraud merchants by use of stolen credit cards. A witness obtained the license number of the automobile being used by Boyd and reported it to the police. When police investigated at respondent's residence, respondent denied that Boyd was hiding in respondent's home and further denied knowing Boyd's whereabouts. Later in the day, officers stopped respondent as he attempted to back his automobile out of his driveway. Boyd was discovered hiding on the floor in the back seat area of the car.
On January 4, 1985, respondent was indicted for obstructing justice in violation of R.C. 2921.32. Respondent pleaded guilty to the charge and requested that the court allow him to enter a drug treatment program in lieu of conviction. On August 1, 1985, respondent was ordered into a treatment program for three years in lieu of conviction. On March 5, 1986, however, respondent's probation supervisor requested that respondent's treatment status be revoked citing respondent's failure to remain drug free and respondent's commission of two traffic offenses in violation of his probation. This request had not been ruled upon by the time the disciplinary hearing was conducted.
In his testimony at the formal hearing, respondent proclaimed his innocence, stating that he did not know that Boyd was in the automobile before respondent backed out of his driveway. Later, however, respondent seemed to admit that Boyd was in the automobile but that respondent's ability to assess the situation may have been impaired by drugs or alcohol. Respondent claimed that his failure to disclose Boyd's presence was simply "bad judgment." Respondent explained his plea of guilty to the charge of obstruction of justice as being based upon the advice of counsel but not in accord with the facts. On consideration of these facts, the board found that respondent had committed the offense of obstruction of justice. By respondent so acting, the board found that he had violated the following Disciplinary Rules: DR 1-102(A)(5), engaging in conduct that is prejudicial to the administration of justice; DR 1-102(A)(6), engaging in conduct that adversely reflects on respondent's fitness to practice law; DR 1-102(A)(3), undertaking conduct that involves moral turpitude; DR 7-102(A)(2)( sic), concealing that which the law requires respondent to reveal; and DR 7-102(A)(5), knowingly making a false statement of law or fact. The board further noted a "* * * lack of candor in the quality of [r]espondent's testimony concerning the obstruction of justice count."
The board made specific reference in this instance to DR 7-102(A)(2) which provides in pertinent part:
"* * * [A] lawyer shall not:
"* * *
"(2) Knowingly advance a claim or defense that is unwarranted under existing law * * *."
In citing this rule, however, the board further adopted specific language suggesting that it intended to cite DR 7-102(A)(3) which provides, in pertinent part:
"* * * [A] lawyer shall not:
"* * *
"(3) Conceal or knowingly fail to disclose that which he is required by law to reveal."
Because it appears to this court that the strictures of DR 7-102(A)(3) apply in this case rather than the strictures of DR 7-102(A)(2) and, further, because respondent does not challenge this discrepancy, this court hereby adopts DR 7-102(A)(3) as that rule which the board intended to cite.
Relator alleged that respondent had failed to file an appellate brief for Jo Teschner-Caruzzi within rule, thereby neglecting a legal matter entrusted to him. Upon consideration, the board found that this allegation was not supported by the evidence.
IIWayne Tatman retained respondent to represent him in a wrongful discharge action. During the course of this employment, respondent settled Tatman's claim for $1,500 without Tatman's prior approval. Nonetheless, Tatman endorsed the settlement check over to respondent. In turn respondent presented a personal check to Tatman to cover what respondent represented to be Tatman's $900 share of the settlement. Upon Tatman's presentation of respondent's personal check to the bank, the bank refused to honor the check.
Based on these facts, the board found that respondent had violated DR 6-101(A)(3), neglecting a legal matter entrusted to him, and DR 7-101(A)(2), failing to carry out a contract of employment entered into with a client for professional services.
IIIIn April 1983, respondent and attorney Michael G. Moore formed a partnership. On July 1, 1984, Moore unilaterally terminated the partnership. Upon review of the partnership records, Moore determined that respondent had overdrawn his partnership account by some $35,000. Further, respondent had used Moore's personal "line of credit" to withdraw $1,900 without placing matching funds in the partnership account. Respondent further failed to deposit, as agreed upon, a $4,000 check and a $1,000 check in the partnership account.
Based upon what the board characterized as a "* * * pattern of deceit by which [respondent] * * * gained unauthorized financial advantage to the detriment of the partnership," the board concluded that respondent had violated DR 1-102(A)(3)( sic), engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation.
DR 1-102(A)(3) provides:
"A lawyer shall not:
"* * *
"(3) Engage in illegal conduct involving moral turpitude."
DR 1-102(A)(4) provides:
"A lawyer shall not:
"* * *
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." (See discussion in fn. 1, supra.)
On February 25, 1986, respondent was found guilty of two traffic violations: operating a motor vehicle while under the influence of alcohol and driving while under suspension of driving privileges. Respondent admitted the commission of these offenses and stated that he had a drinking problem. The board concluded that respondent violated DR 1-102(A)(6), engaging in conduct that adversely reflects on his fitness to practice law.
Upon such evidence and conclusions, the board of commissioners recommended that respondent be indefinitely suspended from the practice of law.
J. Warren Bettis, disciplinary counsel, and Karen B. Hull, for relator.
Edward William Hastie II, pro se.
Upon a full review of this matter, this court finds that the respondent has violated DR 1-102(A)(3), (4), (5) and (6), 6-101(A)(3), 7-101(A)(2), and 7-102(A)(3) and (5). This court hereby orders that the respondent be permanently disbarred from the practice of law in the state of Ohio.
It is further ordered that the costs of these proceedings be taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.